Allison v. Askins ( 2002 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-21045
Summary Calendar
KENNETH RICHARD ALLISON,
Plaintiff-Appellant,
versus
KNOX ASKINS; JOHN D. ARMSTRONG; CHARLES R. HUBER, JR.;
J. B. WILLIAMSON; A. GOONIE; DANIEL E. WALTERS; DEBBIE S.
WILMORE; CITY OF LA PORTE; JOHN DOE #1; NORMAN MALLONE;
ROBERT T. HERRERA; BOBBY POWEL,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-99-CV-3788
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June 18, 2002
Before DAVIS, BENAVIDES, and CLEMENT, Circuit Judges.
PER CURIAM:*
Kenneth Richard Allison, pro se, appeals from the dismissal
of his civil rights complaint, alleging claims of
unconstitutional conditions of confinement at the La Porte,
Texas, City Jail, unlawful arrest and detention, and unreasonable
search and seizure of his property. The district court dismissed
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 01-21045
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Allison’s claims against various La Porte officials and employees
for failure to state a claim, among other reasons. FED. R. CIV.
P. 12(b)(6).
The magistrate judge acted within her authority in ruling on
Allison’s motion to proceed in forma pauperis (IFP) and did not
abuse her discretion in denying the motion, upon reexamination of
the motion, for economic reasons. See 28 U.S.C. §§ 636(b)(1)(A),
(b)(1)(B); Flowers v. Turbine Support Div., 507 F.2d 1242, 1244
(5th Cir. 1975). Allison has not demonstrated error in the
magistrate judge’s order specifying that only two of the
defendants, Askins and Armstrong, be issued summonses. See 28
U.S.C. § 1915(e)(2); see Spears v. McCotter, 766 F.2d 179, 181-82
(5th Cir. 1985) (defendant may be required to provide a more
definite statement of substance of claim before service of
process is required).
Although the magistrate judge lacked the authority, under 28
U.S.C. § 636(b)(1)(A), to rule directly on his motion for
injunctive relief, any defect was cured by the district court’s
de novo review of the magistrate judge’s report and
recommendation.
Contrary to Allison’s appellate argument, the magistrate
judge did not order Askins and Armstrong to file a motion for a
more definite statement and did not order Allison to respond to
the defendants’ “discovery.” Rather, after the magistrate judge
granted the defendants’ motion for a more definite statement, see
No. 01-21045
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FED. R. CIV. P. 12(e), the magistrate judge instructed the
defendants, in order to expedite a more definite statement of
Allison’s claims, to propound detailed and specific requests for
information from Allison.
The magistrate judge did not abuse her discretion in
refusing to compel the defendants to respond to Allison’s
discovery requests. See Schultea v. Wood, 47 F.3d 1427, 1434
(5th Cir. 1995)(en banc). Nor did the magistrate judge abuse her
discretion in ordering Allison, on October 18, 2000, “not to file
any further pleading, motion, or response until the court has
ruled on the pending motions to dismiss and for summary
judgment.” See Union City Barge Line v. Union Carbide Corp., 823
F.2d. 129, 135 (5th Cir. 1987) (district court has broad
discretion to control its own docket).
Allison has failed to set forth any factual allegations on
appeal in support of his claims of unconstitutional conditions of
confinement at the jail, wrongful arrest and detention, or
unconstitutional search and seizure of his property. Allison
attempts to incorporate by reference arguments made in numerous
district court pleadings. Previously raised arguments may not be
incorporated by reference. See Yohey v. Collins, 985 F.2d 222,
224-25 (5th Cir. 1993). Because Allison makes only conclusory
allegations on appeal regarding his civil rights claims, Allison
has abandoned those issues on appeal. Id. (arguments not briefed
No. 01-21045
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on appeal are waived); see also Brinkmann v. Dallas County Deputy
Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).
AFFIRMED.